ROMARIO ROMAN SIP NOTES SEMESTER 1

GENERAL INTRODUCTION

- Substantive law
o determines the rights, duties and remedies of a person (scope and
nature of these rights of both natural and juristic persons)
- Procedural law
o deals with the enforcement of the rights, duties and remedies of a
person
- Criminal procedure
o Here the state acts on behalf of the general public to punish criminals
on the basis of the criminal law
 Vertical relationship
 State vs accused and is instituted the complainant
- Civil procedure
o Deals with civil law and entitles a person to institute an action against
a defendant or responded and allows the defendant to defend an
action or impose an action
 Horizontal relationship
 The state can be part of civil procedure and this is when the
state becomes party to a contract with a natural person
 Plaintiff vs defendant
- Application procedure
o Applicant vs respondent

Principles underlying civil procedure – page 3 of textbook

1. All persons must have equal and effective access to an independent and
impartial judiciary. This principle also includes the requirement that the costs
and the duration of litigation must be reasonable

2. Throughout the proceedings the parties must be afforded an equal opportunity

to present their respective cases to the court. This requirement is referred to
as the audi et alteram partem principle, and ensures that
 The defendant is notified of the proceedings
i. Start with a letter of demand and then issue a summons with a
particulars of claim
ii. There after it goes to the sheriff
 Both parties are informed of the nature of the opposing party’s case, as
well as the grounds on which it is based;
 Both parties are afforded the opportunity to present their respective
cases to court
 3. The decision to institute or defend an action and to determine the scope of the
dispute rests with the parties and the parties decide on the evidentiary
material to be presented as proof of their respective cases. This is referred to
as party control.
 In a question explain what party control means
4. During the presentation of the parties resoective cases provision must be
made for direct oral via voce communcaition between the parties (personally
or by means of their legal representation
5. The main proceedings must in principle take place in public
 Proceedings in camera = exceptions (children cases)
6. The court must consider the evidentiary material on objective and rational
grounds
7. The court must give a reasoned and legally motivated judgement and give it
expeditiously
8. The decision of the court is final and binding, but provision exists for appeal or
review. A rescission of judgment is also possible in certain specific
circumstances
 Know six of these and know the audi rule in detail
 Section 34 recognises these principles

Sources of civil procedure – page 4 and 5

1. CRSA
2. The Constitutional Court Complimentary Act and the Rules Of The
Constitutional Court
3. The Superior Courts Act
4. The rules of the SCA
5. The uniform rules of court applicable in all high courts
6. Common law
7. Case law
8. Etc. get the rest from clickup
 Know six sources for theory

Alternative dispute resolution – page 6 and 7

- Not for exams and tests

Hierarchy of courts

- Constitutional Court
o Quorum
 8 judges
th
o 17 amendment act – highest court in all matters
o Requirements:
 Arguable point of law
  General public importance
 Ought to considered by that court

- Supreme Court of Appeal

o 5 judges
o Remember dae novo if votes are split
- High Court
o One high court but there are certain divisions
o Know only six
 Gauteng divison of the HC Pta
 Gauteng local division of the HC Jhb local
 Durban
 Pmb
 Blm
 Cpt
- Magistrates Court
o Regional – divorce matters
o District
- Small claims court 16-19
o Separate lecture
- Courts of chiefs and other courts
- Special courts (self study)
o Know 3 points under each court
 How was the court created (legislation)
 Purpose of the court
 Any other matter that is relevant

Study guide assignment questions

1.1 A and B were involved in a motorcar accident since B failed to stop at a stop
sign. B was also driving under the influence of liquor. When A approached B to
inquire why he did not stop at the stop sign, B swiped at A and broke A’s nose.

Indicate what types of proceedings A may institute against B with regard to:

(a) The damages to his vehicle.

(b) His broken nose.

(c) B’s failure to stop at the stop sign.

(d) The fact that B drove under the influence of liquor.

1.2 Not to submit: Write an essay on the History and Development of the law of Civil
Procedure in South Africa. (Use the sources below.)
1.3 Not to submit: Write an essay on the impact of the Bill of Rights on civil
procedure (This essay must be reviewed throughout the year in view of the subject
as a whole.)

21 Feb 2018

Study theme 3 (Chapter 3)

3.1. self-study

Consultation, representation, demand and prescription

- Further reading material – mameick litigation skills for lawyers

- First consultation – first fix fees
o Always better to have a written fee agreement
o Get a deposit from the client
o Do you not have right of appearance?
 Conflict of interest
 Divorce matters (seeing both clients)
 Depends? If the matter can be settled (you see both
clients)
 When there is a dispute between husband and wife- both
must be referred to other independent attorneys
o Application vs action?
 The practical example – claim for damages – unliquidated claim
– there has to be an action proceedings
o Advocate or not?
 Depends

- Administrative matters
- Open file with certain info
o File number
o Every year start a new file number e.g 1/2018
o Initials may be included
o Particulars of the client
- Important dates
- Account number
o Proper book keeping system
- Strategy
- Appoint advocate?
- Diarise dies

- Legal representation of parties – 30-33

 o Cornerstone of civil procedure
o HC
 Right of appearance? – any person with locus standi can
appoint someone to appear in the HC
 An attorney with an advocate – advocate can
 A person can himself represent himself and not a third
party who is not an advocate
 Attorney with the right of appearance (application to the
registrar of the HC)
o LLB degree
o Certificate of good standing
o Certificate of admitted attorney
 Only an advocate can sign pleadings of the HC
 Client has to give a written power of attorney (no longer
needed)
 Exception?
o Has to be filed in appeal matters
 Position of juristic person?
o MC
 Any natural person can appear on his/her behalf or an attorney
 Advocate
 CA
 Co. – can appoint an attorney to appear on his behalf
 No order for costs except for necessary expenses
 Only a legal practioner can get a cost order
 Power of attorney to act on behalf of client?
 Client has to give a written power of attorney (no longer
needed)
 Exception?
o Has to be filed in appeal matters
o Indigent person
 He would not ask a question on this
 Legal aid board
 Legal clinic etc.

- Application vs action (NB NB NB) – theory questions – page 34

Action Application
Parties – plaintiff vs defendant Applicant vs respondent
 An action is based on real and An application is based on a factual
material factual dispute dispute of such a nature that it may
easily dealt with in affidavit may also
be used for dispute law
Commences with the issuing of Commences with the issuing of a
summons by the plaintiff notice of motion and supporting
founding affidavit by the applicant
Further pleadings are exchanged by There is no written preparation for
the parties namely: trail stage
Defendants’ plea and
counterclaim
Plaintiff’s reply to defendant’s plea
Plaintiff’s plea to defendant’s
counterclaim
The action procedure ends in the trial The motion procedure ends in the
court, where mainly oral evidence by motion court. In principle, no oral
the parties and their witnesses is evidence is presented and the parties
presented do not testify
the case is argued by the legal reps
on the papers before the court

Demand:

- What is contained in this letter of demand?

o Indication that you are acting on behalf of a certain client
o Reason for the demand
 Motor vehicle collision
 Set out the delict
o What action do you expect form the defendant
 Payment of a sum of money
o Time period for when the defendant must comply with the demand
 You can decide the time period
o Consequences
 Threat: issue of summons

- When is demand necessary?

o Contract
o Small claims court act
o Customs and excise act
o PIE Act
 Applications for evictions
- NCA- section 129 notice

Prescription

- Period 30 years
 o Judgement debt and mortgage bond
- Period of 15 years
o Debt of the state
- Period of 6 years
o Negotiable interest
- Period of 3 years
o Everything else

- How do you calculate the prescription period?

o Listen to recordings about prescription
- Interruption
o acknowledgment of liability by the defendant
- suspension
o minor – will be suspended until a year after the impediment ceases
o example: when the person becomes 18 years there will be year left
before the matter subscribes

- Organ of state (NB) 5 marks

o Any provincial or local government, SAPS etc.
o There are certain things you take into account
 Date of collision – 9 Jan 2018 – you have a period of six
months to institute this action by way of a letter of demand – 9
July 2018
 In terms of the act an organ of state can accept a notice that
does not meet all the requirements of the act or can abolish the
giving of notice
 After the notice is sent the P must wait 30 days before he or she
can issue summons
 Client only sees you in August – you can still request
condonation for sending the letter of demand late
 If it is 2 years condonation is very difficult
o Institution of Legal Proceedings Against Certain Organs of State Act.
- Procedure
- Prescription

- RAF – page 41 and 42 = self-study

- Apportionment of Damages Act

o One year from the date of judgment or final judgment to request
contribution from a third party
- Superannuation judgment
 o Prescription period of judgment debt – 30 years
o How do you execute if there is no payment by the defendant?
 MC: warrant of execution – sheriff attaches property, you only
have a period of three years from the judgment
 If you do not do it in 3 years, the judgment will lapse but will not
prescribe, bring an application to revive it
- Superannuation of summons
o In terms of the old rules when you issue a summons you have to serve
it on the defendant within one year or if it was served within one year,
you had to take further steps for the prosecution of the action
o In the new rules there is no provisions on this
o MC: now you can wait as long as you want

Study guide outcomes:

Mrs X is your client. She was involved in a motor vehicle accident when the other
driver, Mr Z, failed to stop at a red robot.

a) Make up your own facts and draft an enquiry list in which you indicate all the
relevant information to be gathered from Mrs X for the purposes of drafting a
summons and to deal with her matter in subsequent litigation.

b) Will you require any documents from your client? Indicate these.

c) Make up your facts in view of the above and draft a letter of demand that you can
send to the negligent party, Mr Z.

3.2 Explain your modus operandi in the following instances:

a) You consult with a new client who instructs you to institute a civil action. You want
to ensure that your mandate is clear.

b) You act in a magistrate’s court matter. Your authority to act on behalf of your client
is questioned.

c) You act in a high court case on behalf of a client who fails to give you proper
instructions. He also does not pay your account. You do not want to act on his behalf
any further.

3.3 On 1 December 2009 Jack is involved in a motor vehicle accident caused by

Constable Pete who skipped a red traffic light while driving on patrol in his patrol
vehicle. Which procedural requirements will Jack have to comply with before he can
institute an action against The Minister of Safety and Security?

3.4 Best Bank Ltd, a registered credit provider, enters into an instalment agreement
regarding a Toyota Tazz with Clive Consumer on 1 December 2009. Clive takes
possession of the vehicle but thereafter fails to make the agreed monthly payments.
Draft the letter of demand that Best Bank Ltd will have to send to Clive Consumer
before legal action may be instituted against him. Add your own facts where
necessary and ensure that you incorporate the relevant prescriptions as set out in
articles 129(1)(a) and 130 of the National Credit Act 34 of 2005 into the letter of
demand.
28 Feb. 18: Theme 4:page 47

General principles of jurisdiction

Just go through the introduction.

Civil courts jurisdiction:

What is jurisdiction:

- The competence or authority of a specific court to hear a matter and grant legal
relief for the particular matter
- After letter of demand you then issue a summons with the particulars of claim
o The summons has to have the name of the court thus jurisdiction
- Two stage enquiry
o Can the court hear the specific matter?
o Link- cause of action, defendant, property (territorial jurisdiction)

Page 49 para 4.1.4

- Discuss the four principles of general jurisdiction

1. Principle of actor sequitur forum rei

o Plaintiff must follow the resides of the defendant,
 Effect will be given to the judgement to someone who is in the
jurisdictional area

Residence vs domicile (para 4.6.1 – page 52)

- Very important in terms of the wording

o Domicile – here the person must have the animus anendi (intention to
stay permanently)
o Residence – temporary in nature, there has to be some continuity
o If the person moves around the country? – you look at where the
person resides at the moment

2. Effectiveness
o Court must have the potential to enforce its judgement
 A court must not be fully enforce its judgment
o Man of straw: this person is dead broke but loves the court, this person
has nothing to loose
 Where the person has got nothing on his or her name
 
Onus is on the client to check whether the defendant has
money
 Where the persons money is in a trust but he is balling
 Here the client also has to understand this
o Themo radiant case (take not and do not have to know the case

3. Principle convenience (cause of action)

o Where the cause of action arose
o Convential basis – cause of action arose within jurisdictional area of
the court
o Convenient because most likely that most of evidence will arise from
area and that most witnesses will be resident/domiciled there
o Concurrent jurisdiction

4. Consent (prorogation)
o Court can exercise jur in certain circumstances where defendant
consents to court’s jur
o There can be express and tacit consent
 If there is no special plea by the defendant the court can
assume that there is jurisdiction
 If no links are present the court will not exercise jur because
there was no jurisdiction at all even if there is consent

- Incola
o A person who is resident or domiciled in that specific area of
jurisdiction
- Perneginus
o Local vs foreign
 Local: person domiciled or resident outside the jur area of a
specific court but in the RSA as a whole
 Foreign: a foreigner – resident outside the boarders of SA
- Companies and CC’s
o Principle place of business – “resides” (central management)
o Registered office – reside (concurrent jur)
o Where the company/ cc carries on business
- Foreign companies
o Will be regarded as resident of SA if:
 It has its principle place in sa
 It has branch office in SA
- Partnerships
o All partners are joint in a matter
- State
 o HC: where cause of action arose
o MC: PTA as seat of government regarded as residence or place of
business/ where case of action arose
- Inerent and prescribed jur
o HC: inherent jur – HC can hear any matter except where legislation
states that the HC does not have jur
o MC: creature of statue
 Only where matters where an act describes where the court can
have juri
LIMITATIONS ON JURI WILL NOT BE A QUESTION!!!!

- Specific provisions
o S149 of Insolvency act
 Petition refers to an application
 Where the debtor is domicile within the juri area of the court or
owns property or carries on business for over 12 months

7 March

Jurisdiction of the High Court

- HC has inherent jurisdiction – the HC can hear any matter and follow any
procedure as long as it is not prohibited by statue
o HC uses this power restrictively
o They try stick to the rules
o Has the power to adjudication on any interference of rights
- MC- can only do things that is mandated by legislation
- 3 things
o Value of the claim
 There is not limit on the value of the claim
 If you approach the HC with a case of a lower court, you may be
penalized in terms of a cost order – cost order will be granted on
a mag court scale
 Below R400 000
 What happens if you realize you have made a mistake in terms
of the court
 Can be referred back to mag court provided that both
parties have consented
 If the defendant refuses to consent?
o The P can withdraw the claim and reinstitute in the
MC
o There will be a cost implication to this – if you
withdraw a claim you have to render costs of that
party up to the point where you have withdrawn
o Nature of the claim
  Any type of claim unless prohibited by statue
o Territorial jurisdiction
 Each court has territorial jurisdiction
 15km rule? – has nothing to do with the area of jurisdiction of
the court.
 Address of the party within 15km of the court
 What happens if you are not 15kms of the court
 Appoint a correspondent attorney – appoint another
attorney to serve documents on your behalf
 Section 2(1) of the Superior Courts Act:
 A person “residing or being in” area of jurisdiction
 Fact that cause of action arose within area of jurisdiction
 Ratio jurisdictiones–Link or reason for jurisdiction such as
o (i) locality of defendant, or respondent
o (ii) locality of property that forms the subject of
litigation
o (iii) cause of action

 Divorce actions (exception): Section 2(1) of the Divorce Act 70

of 1979
 Court shall have jurisdiction if the parties to the action
are, or if either party to the action is:
o Domiciled (person has the intention of residing
in the place for an indefinite period) in the area
of jurisdiction of the court on the date on which the
action is instituted; or
o ordinarily resident (I am not domiciled in
Pretoria but in Kokstad) in the area of
jurisdiction of the court on date on which the action
is instituted and have or has been ordinarily
resident in the Republic for one year
immediately prior to that date
 even if you are abroad

 Rule 43 of HC Rules application – pending divorce action

(interim relief)
 Maintenance pendentelite
 Interim care and primary residence of minor child
 Interim contact of minor child
 Contribution to legal costs

- Proceedings relating to property: immovable property

 o Forum rei sitae (where the property is located) seemingly exclusive
jurisdiction in respect of:
 Proceedings to determine title to property
 Obtaining of declaratory order to effect that a real right is held in
the property / property is free of alleged real right
 Claims for handing over of occupation / possession of property
 Example: two parties having a dispute about who the actual
owner is of the property, the property is a holiday home in KZN,
the two parties fighting about it are both resident in pta. They
cannot approach the court in pta they have to go to KZN – to the
forum rei sitae

o Forum rei sitae: concurrent jurisdiction

 Claims for transfer / partition of immovable property (here you
can approach the forum rei sitae or where the defendant
resides)

 Claims for the rescission of a contract for the sale of

immovable property (unclear if any other court will also have
jurisdiction) – you are safe if you use the forum rei sitae

 Proceedings for a declaration that property is executable (two

different viewpoints on other courts)
 Some courts: you have to approach the court where the
property is located
 Other courts: you have to approach the court where the
defendant resides

 Application to sell or mortgage a minor’s immovable property –

usually brought before court of minor’s domicile (not even clear
whether forum rei sitae has jurisdiction)
- Movable property
o Forum reisitae has jurisdiction
o Not clear if this is an exclusive jurisdiction (control)
- Incorporeal property
o Law attributes to it a fictional locality or situs
o See examples on p 68 of Textbook
 A debt is located where the debtor is located
 Shares – where those shares are registered
- Concurrent jurisdiction
o Where provinces has two High Courts
o Provincial division in Pretoria
o Local division in Joburg
  The provincial division can hear cases from the entire province
 Local – can only hear cases from that division
o Example pg 68
- Counterclaims
o If the P institutes an action in a particular court and the defendant
institutes a counter claim, that court will have jurisdiction over the
counter claim even if it would not have normally had jur over the claim
o Example: P institutes actions against the D in the court where the D
resides – this is fine
 D then institutes a counter claim against the defendant
regarding moveable property which is in a different courts jur –
here the court already has jurisdiction over the main claim

- Causae continentia doctrine

o Page 80-81 of textbook
o If the court has jurisdiction over one part of a cause, it will have
jurisdiction over the entire course
o Case in the textbook!!!
o Here the court assumes jurisdiction

- Removal of a matter to another division

o Institute action in a HC but later you realize you should approach a
different HC – can be moved as long as the parties agree – the parties
might move this for convenience
o The court that was initially approach should have had jurisdiction

Study guide outcomes

5.1 Mr Y, a French citizen, wants to institute action against B, a South African citizen
residing in Pretoria with regard to breach of contract that B committed in Cape Town.
Mr Y informs you that he wants to institute action in a South African court. What will
you advise him?

5.2 Mrs X, residing in Johannesburg informs you that she intends to divorce her
estranged husband who is living with his girlfriend in Pretoria. From which court will
you issue summons? Give reasons for your answer.

14 Mar. 18 – PLAY

- You always look at the defendant- does not matter where the plaintiff is from
- If the defendant is a resident or is domiciled in RSA
o P must follow the D
o Where did the cause of action arise
- If D is a foreigner – the court cannot just assume jurisdiction
 o As P you can found jurisdiction at the court where the plaintiff is an
incilia
 Durban
 KZN local division Durban
o You can also confirm jurisdiction –where the cause of action arose
 Pretoria – Gauteng divison of the HC Pretoria

How is this done (found jurisdiction)

 You can attach property belonging to the perengius –
there was property all over the show in SA
o Old position = second option
 What if there is no property, it was allowed to arrest the
foreigner – this is not constitutional!!!
 Bid industrial holdings v Strang
 Court stated that the arrest procedure to confirm
jurisdiction is unconstitutional

- What if there is no property

o Strang: serve a summons personally to the foreigner while he is still in
the republic – here the court will have jurisdiction
- What if the person has left the republic
o The P will have follow the D to his residence or domicile

11 Apr. 18

Jurisdiction of the magistrates court (Extension of jurisdiction) page 96

- Revision for jurisdiction

o Value – amount of the case
o The exclusions
o Territorial jurisdiction
 Divorce is where the plaintiff or defendant is domiciled
 Where the P or D ordinarily resides in the republic of South
Africa

- In some instances the existing rules can also be extended!

- Section 37 incidental: accounts
o Look at the capital amount claim, has to fall under a jurisdiction

- Section 38 of MCA: abandonment (know the section number) (para on 97

6.7.2.1 and 6.7.2.2 (ignore the blocks in the textbook)
o You can abandon from the HC to RC or from the RC- DC
 o Here the P claim exceeds the jur of the RC with only a small amount,
then you can abandon that amount
o You can abandon anything between R10 000, in the test it would not
be more than R5000
o Where the claim amount is R410 000 and you know that you cannot
prove the full amount at the trial, you can only prove R390 000 - here
you only get costs on a regional court scale
o Counterclaim – Apportionment of Damages Act
 Here the damages is apportioned
o When do you abandon?
 Must be done in the summons or in the particulars of claim or
later before judgment
 D disputes this in a special plea based on the lack of jurisdiction
o Never abandon on your own accord, always get your clients
instruction!!
o All you have to know is the golden rule
o Golden rule: P gets judgment for the amount he proves as long as
it does not exceed the jurisdiction limit of the court
o R200 000 in District Court and R400 000 in court of a regional
division)
o In the test it will always be from the HC to the RC
o The court cannot give you more than the jurisdictional limit amount

- Section 39: Deduction of an admitted debt (page 99) here it is not really set-off
(this is incorrect – do not discuss set of)
o The client tells you that the claim amount is 405 000
o Here the client wants to institute the claim in the regional court,
therefore you have to get rid of the R5k
o You can abandon or deduction of an admitted debt
o Better to deduct because afterwards you do not have to pay the
deduction back to the defendant
o Golden rule: P gets judgment for the amount that the proves
minus the admitted debt as long as it does not exceed the
jurisdictional limit of the court (R200 000 is DC and R400 000 RD)
o Where the P owes money to the defendant
o This must be done in the summons but any time before judgment
 R405 000- R400 000 = R400 000 (do this in a question)

- See slides of an example of a particulars of claim

- Section 45 Consent: know page 103 and 104 well

o Do not have to know the section
 o Parties can always consent to the extension of the jurisdiction limit
(amount) of a magistrate court –usually a regional court or district court
o Usually in a contract and pertains to actions that may arise in the future
o Proviso: where the parties consent to a specific mag court
 This cannot be done in a contract! Parties may not consent to a
specific court
 What happens if a certain mag court has jurisdiction
o Specific mag court:
 Where the action is already instituted
 Where it is going to be instituted – pending litigation
o Parties can never consent to matters that are specifically excluded by
section 46 (103)
 Know exclusions well

Leave out counterclaim

Leave out removal of a matter to a HC

Leave out transfer of matter from one court to another

- Section 40: Splitting of claims – pg 104

o When there is a claim by a P, the P cannot split the action if the parties
are the same
o If there is only one cause of action = splitting of claims
o More than one – commutative cause of action
o He likes asking this and people always get it wrong
o Lease agreement and the lease is 100 000 a month, the D is in arrears
of 600 000 – jurisdiction is in the HC
 Each month of arrears is a separate cause of action
 Therefore it would be in the district court

Study guide outcomes

S lives and works in Pretoria. T wishes to institute proceedings against S in the

magistrate’s courts in the amount of R100 000 for goods sold and delivered by T to S
in Pretoria. In relation to these given facts, answer the following questions and give
reasons for each answer:

(a) Could T institute proceedings against S in the magistrates’ court for the district of
Pretoria?

(b) Would your answer to (a) above differ if it was agreed that the goods would be
delivered in Johannesburg and S failed or refused to receive the goods as agreed,
despite demand?
(c) S and T included the following clause in their initial contract: “In the event of any
litigation arising from the contract, the parties agree that only the magistrate’s court
in Pretoria will have jurisdiction to hear the matter.” Would such clause be valid?

17 April

SMALL CLAIMS COURT (there will be a question on the this)

Introduction

- It is not worth your while to institute an action in the MC if your claim is less than
R15 000 – it depends… when the claim is R 15 000 (the district court will have
jurisdiction) – if the matter is not defended by the D, the P can apply for a
default judgment – here MC is the best.
o If the matter is defended the matter is referred for trial – all of this is
subject to expensive legal costs – where the matter is defended it is
better to leave it in the DC
o If the plaintiff is successful in matter the P will be awarded a party-party
scale – draft bill of costs and send it to the taxing master- costs
according to legislation.
o An attorney has to explain that the client has another option – which is
the SCC where there is almost no costs involved

- Specialised court created by Small Claims Court Act 61 of 1984

- Purpose – to make legal system cheaper and more accessible
- Sits after hours – after normal office hours
o The SSC in Pretoria is part of the magistrates court
o This is so someone does not have to take time off from the work
o The commissioner does not get paid – community service - this person
also has a day job
- No legal representation allowed- this does not mean that you cannot give
advice to the client
- Commissioner acts as presiding officer – no remuneration (community service)

- Not a court of record – proceedings are not recorded on tape

- Plaintiff must be natural person and not juristic person – company’s use
this as a free debt collection court – here the court is over flooded with cases
etc. Does not apply to a defendant!
- Jurisdiction
o Monetary
- Limit currently R15 000 (from 1 April 2014) – this is the capital claim amount –
you do not take into account any interest
- NB NB NB – abandonment, deduction of admitted debt, splitting of debt ,
communities jurisdiction is also applicable in the SCC
o Claim amount
 o Plaintiff
o Deduct an admitted debt
- Interest, costs and alternative relief not included

Causes of action (nature of the claim)

- Actions for delivery / transfer of movables / immovable not exceeding R15 000
- Actions for ejection where value of right to occupation does not exceed R15 000
- Actions based on liquid document / mortgage bond not exceeding R15 000
- Actions arising from credit agreement (NCA) not exceeding R15 000
- Other actions not mentioned not exceeding R15 000 and that is not excluded by
exclusive jurisdiction
- Actions for a counterclaim in respect of above not exceeding R15 000

- Section 16 – causes of action totally excluded:

o Dissolution of marriage / customary union
o Validity or interpretation of will
o Mental capacity / status of person
o Specific performance without alternative for damages (2 exceptions)
o Decree of perpetual silence
o Damages in respect of libel / malicious prosecution / seduction / breach
of promise to marry
 In the SSC you cannot consent to where the amount exceeds
R15 000
o Interdict

- Person of defendant – territorial jurisdiction

o Person who resides / carries on business / employed
o Person with regard to related proceedings – counter claim
o Cause of action arose wholly within jurisdiction
o Defendant who appears and doesn’t object
o Person who is owner of fixed property (immoveable property or land) in
action relating thereto / mortgage bond thereon

o NO ACTION AGAINST THE STATE

o NO CESSION OR TRANSFER OF RIGHTS

- Procedure
o Normal rules of evidence not applicable
o Commissioner may admit all relevant facts in any manner deemed
necessary
o Evidence presented orally or in writing
o Inquisitorial
 o No cross-examination
 The commissioner may give permission to do so
o Witnesses may be called to testify
o Difficult questions on law / facts – suspension of proceedings
 P can institute an action ne novo in a court that is of proper
competence

- Judgment and costs

o Court can make the following order
 Judgment for plaintiff
 Judgment for defendant
 Absolution from the instance
 Fair costs (s 37)
- Section 35: default judgment and consent to judgment
- Section 36: rescission and amendment of judgments
- Only the following costs:
o Court fees
o Prescribed amount regarding issuing of summons
o Fees and travelling costs of sheriff
- Review
o No appeal – not a court of record
- Review on following grounds:
o Lack of jurisdiction
o Interest in matter, prejudice, malice or corruption by commissioner
o Gross irregularity with regard to proceedings

Study guide outcomes

A (Pty) Ltd leases premises to Mr X on a month-to-month basis for a rental of R6000

a month in terms of an oral contract of lease. Mr X fails to pay the rental and A (Pty)
Ltd wants to institute action against X in order to evict X from the premises and to
claim the arrear rentals for 3 months. Advise A (Pty) Ltd with regard to the court that
should be approached in this instance.

Chapter 7

- Third party joinder – pg 131 -135

o Do not need to know all of this – only know the general principles
relating to joinder
o This is where someone has got a direct and substantial interest – the
party must be joined
o You can join more than one defendant/application or join one or more
cause of action
o This is to avoid a multiplication of actions
o now first part under para 7.5.1
 when a party claims or is entitled to a contribution or an
indemnification
 when one of the parties to an action (mostly the defendant)
claims that question issue is substantially the same or is likely to
occur later between a third party
 third party can be joined where there is contributory negligence
 where there is indemnification
 example:
 A checks into hotel B and signs an indemnity clause, C
visits and slips on the premises and breaks his arm – C
sues B, B can use third party joinder to include A into the
proceedings
 HC rule 13 and Mag court rule 28A
 Where there is contribution
 Know the relationship between the third party and
apportionment of damages act
 ADA – applies to contributory negligence
 Look at the claim amount to know if the mag court rule or
HC is applicable
o ADA
 The defendant must give a notice to the third party, B fails to
give the notice – B may use the action to institute the action later
 Attorney must get an order to bind A to the proceedings, this
notice is send in terms of section 22 of ADA
 If the third party intervenes – the third party becomes a second
party in terms of the case
 There will now be an appointment of damages
 If A fails to intervene, use the rules but the only thing that you
will get is a declaratory order

o Example:
 Who can be a plaintiff in a car accident
 The owner of the motor vehicle
 Can a driver claim?
 No as there is no locus standi, the owner has to institute
the claim
 Someone who bears the risk of damage to the motor
vehicle (someone who buys on instalment)
 Who can be the defendant
  The wrongdoer
 The driver of the other vehicle
 Can you sue the owner? Only if the owner is also the
driver of the other vehicle
 Remember vicarious liability

- Pg 135-136 – he won’t ask this

- Para 7.6 (know) Consolidation
o There is a bus driver who is negligent and there is a collision and there
is 20 passengers in the bus and all these people institute 20 different
actions
o One action can be consolidated against the defendant
- Page 137-138 (NNB)
- Know: subrogation!!!
o Insurance contract and you are insured with OUTsurance
o and you are involved in a car accident – this was due to the sole
negligence of the defendant – outsurance will then indemnify you. Here
outsurnace will institute an action against the defendant in terms of
subrogation.
o Any proceeds will belong to the insurance company

25 April

Introduction: (he will never ask this)

- South African civil procedure adversarial of nature –one or more party claims
legal relief and one or more party opposing granting of legal relief
- Plaintiff is dominus litis – boss of the litigation plaintiff or applicant – the plaintiff
is in control
- Party must have locus standi before legal proceedings can be instituted /
defended
- Must consider to join party with sufficient interest in outcome of litigation
- Party can intervene if he/she has sufficient interest

Locus standi (he will not ask this as well )

- 2 considerations
o Party must have sufficient interest in the right which is subject matter of
litigation
o Party must have capacity to sue or be sued
- Right and interest in relief claimed
- Correct party must appear before court
- Requires that plaintiff/applicant must have:
o Adequate (direct) interest in subject matter of litigation
o interest that is not too far removed
 o actual (not abstract or academic) interest
o current (not hypothetical) interest

- locus standi to enforce rights in the CRSA: might be a question no this . Name
five instances where parties may approach the CC regarding an infringement on
a constitutional right
o (a) Anyone acting in their own interest
o (b)Anyone acting on behalf of another person who cannot act in their
own name – minor or mentally ill
o (c)Anyone acting as a member of, or in the interest of, a group or class
of persons
o (d)Anyone acting in the public interest
o (e)An association acting in the interest of its members

Legal capacity to litigate: NB NB

- Every natural person with full legal capacity may sue or be sued
- Certain persons no or limited legal capacity

- (a)Minors – NB NB NB Page 124

- Majority now acquired at age of 18 years
o Minor under the age of 7 years has no legal capacity and must be
represented by guardian (usually parent)
 The citation – Plaintiff Don Jones – the representative….
Parents will always appear on behalf of!
o Minor over the age of 7 has limited legal capacity and can sue / be
sued
 2 choices. Either the minor can be represented or duly assisted
by the parent or natural guardian
o in his / her name personally duly assisted by the guardian or the name
of the guardian in his / her representative capacity

o Parent/guardian can also act in a dual capacity (eo nomine (personal)

and nomine officio- representative) e.g. 3rd party claim
 Personal – for the costs incurred
 Representative – costs for pain and suffering

- (b) Married women (he will not ask this)

o All married women have locus standi
 o Woman married in community of property –cannot institute legal
proceedings without permission (subject to certain exceptions) of other
spouse and vice versa

- (c)insane persons – must know something – page 117

o Two phases
 Application for curator ad litem– to protects interests of patient
during legal proceedings
 Complie a report and the report will be submitted to the
Master of the HC, the master of the HC also has to
submit a report and then the matter goes to curator bonis
 Application for curator bonis–to manage and control property of
unfit patient

- (d) prodigals – someone who does not have the control when spending money
o Curator bonis can be directly appointed – not necessary for curator ad
litem because there is nothing mentally wrong with the person

- (e) insolvents
o Know 3 exceptions on page 119
 Status matters – like divorce
 Litigation against property that does not fall part of the insolvent
estate
 Matters regarding the profession of the insolvent person
- (f) trusts
o Legal personality? NO
o Cannot be sued and cannot sue in its own name – here all the trustees
must be cited
o There is usually one person who institutes the matter on behalf of the
trust
o Study guide – page 16 – this is done in a representative capacity –
therefore NO has to appear after the name
o Know how to cite a trust

- (g) Partnerships, firms and association

o No locus standi in terms of common law
o HCR 14 and MCR 54 –can sue / be sued in its own name
o Only procedural advantage –no legal personality
o Page 123 – know how to cite a partnership

- (h)Judges, diplomats and other

o See discussion on p 121-122 of textbook
 o If you want to sipoena a HC judge - witness summons – first there
must be an informal request to the judge president. In concultation with
the judgment you will come to a conclusion regarding date and time
o Magistrate court
o Constitutional court and SCA!

- Only know heads of states and diplomats

o Diplomatic immunity
 Diplomat waves immunity
 Country waves immunity
 Do not sue the diplomat as it is a criminal offence
o Fugitives from justice

2.3. Citation of parties

- NNBB!!!!! Must know well for exam (block on p123-124 in textbook)

o P = full names, gender etc..

Joinder of parties and actions (do not have to know technical stuff)

- Joinder of parties –multiple plaintiffs join together against 1 defendant or single

plaintiff can join several defendants in one action / application
- Joinder of causes of action–multiple causes of action are joined together in the
same case
- The primary rationale for joinder of parties or causes of action is to save costs
and time spent in court and to prevent a multiplicity of actions

Joinder of parties in the HC

- (a) Joinder of convenience

o HCR 10 – Several plaintiffs or several defendants
o Not essential for these parties to be joined
o For example, a pedestrian injured in a two-car collision and unsure
which one of the drivers was negligent may sue both jointly.

- (b) Joinder of necessity

o Where an outside party has or will have a direct and substantial
interest in any order
o May take place on the initiative of the plaintiff or on the request of the
defendant
o Example of landlord –lessee - sub-lessee
 Where the lessor wants to evict the sub lessee, here it would be
necessary to join the lessee in the matter
 o See two tests that were employed to decide whether a third party has a
direct and substantial interest (p 127)

- (c) Joinder of causes of action and separation of trials

Distinguish between waiver, non-waiver and miss joinder

- Waiver: someone who has a direct and substantial interest in the matter and
waives his right but will be bound by the judgment of the court
- Non-joinder – there’s party who has direct and substantial interest in the matter
but was not joined in the proceedings – this does not include joinder of
necessity
- Miss- joinder – someone who was joined to the proceedings but has no direct
and sustaintial interest in the matter- not a joined by way of convenience

- Usually the defendant will object via special plea or application = point in liminae

Intervention

- This is where the party that has to be joined and applies himself!
- HC
o HCR 12 -any person entitled to join as a plaintiff or liable to be joined
as a defendant in any action proceedings may, on notice to all parties,
at any stage of the proceedings apply for leave to intervene as a
plaintiff or a defendant.
o At the discretion of the court (when on convenience) but if a direct and
substantial interest is established, must be joined.

- MC
o MCR 28(1) -only a person having an interest in the proceedings may
make an application to intervene
o The applicant must show prima facie proof of a direct and substantial
interest

Class actions – NB NB NB usually a theoretical question – 10 marks - this is where

there is 500 000 plaintiffs

- The constitution – section 38(c)

o Only applicable where a constitutional right was infringed
- Report by the law reform commission
o “A device by which a single plaintiff may pursue an action on behalf of
all persons with a common interest in the subject matter of the suit”
o Is there an identifiable class?
 o Is the cause of action known?
o Is there a commonality of legal and factual issues?
o Is there a suitable representative?
o Is it of legal importance to institute the action?
o Is there a suitable method to institute the action?
o Is it possible to plead res judicata at the conclusion of the matter?
 The conclusion of the court is final and you cannot sue further
- Ngxusa
o Pension funds in EC
o Maladministration
o The court made a decision – there was a debate about the general
class action or was it only in context of the CRSA?
- Kok
o In his opinion the court introduced a general class action
- Hurter
o She disagreed and said it was not a general right

- The Trustees of The Children’s Resource Centre v Pioneer Foods (Pty) Limited
o SCA laid down certain principles
o Requirements on page 113-114
 An application for certification
o Here the courts recognized a general class action in SA law

- MUCADAM
o CC agreed with the court in pioneer foods
o The requirements is not a closed list, these requirements should rather
be factors to take into considerations
 The matter should be in the interest of justice

Examples of citations of parties:

1. CITATION OF MINOR

Plaintiff is JANNIE ROUX, a minor male student, residing at WATENTSINGEL 5,

WAPADRAND, PRETORIA, herein duly represented by MR KOOS ROUX, his father
and natural guardian, residing at the same address

or

Plaintiff is MR KOOS ROUX, an adult male dentist residing at WATENTSINGEL 5,

WAPADRAND, PRETORIA in his capacity as father and natural guardian of his
minor son, JANNIE ROUX, residing at the same address.

2. CITATION OF FIRM
Plaintiff is SMIT & PARTNERS, a firm of attorneys, practising as such at 10 BLOM
AVENUE, SUNNYSIDE, PRETORIA.

3. CITATION OF COMPANY (BASICALLY SIMILAR TO CITATION OF CC)

Plaintiff is BLOMPOT (PTY) LTD, a private company with limited liability duly
incorporated in terms of the Companies Acts of the Republic of South Africa, with
registered office (or principal place of business) at 7 ROOS AVENUE, SUNNYSIDE,
PRETORIA.

4. CITATION OF TRUST

Plaintiff is KOOS KOMBUIS an adult businessman residing at 10 JUK STREET,

WAPADRAND, PRETORIA, in his capacity as trustee of the SMIT FAMILY TRUST
as Trustee for the time being.

5. GENERAL CITATION

Plaintiff is ANDRé BORAINE, an adult male lecturer, employed at the UNIVERSITY

OF PRETORIA, LYNNWOOD, PRETORIA.

[The use of “major” or “adult” is a rule of practice].

Study guide outcomes:

Mr X is your client. He asks you to institute action for damages against Naughty
James who threw a stone through the windscreen of Mr X’s Z3 BMW. Naughty
James is 10 years of age and the only son of Doctor Clever James. Can Naughty
James be cited as a party to the proceedings? Give reasons. What solution can you
offer in order to claim the damages in a court of law?

8.2 The City Council of Pretoria brings an urgent application to the Transvaal
Provincial Division of the High Court in Pretoria, since it intends to demolish a

17

block of flats in the city centre of Pretoria in view of the safety risks involved in
keeping the building standing. There are 5 flats in the block of flats and 5 different
people own the flats and reside in them. The owners of the flats come and see you
for advice with regard to locus standi. Advise them fully with reasons.

8.3 Mr A institutes action against Mr B for damages of R500 000 which he suffered
to his vehicle, a new Ferrari Testarossa during a major car accident. Mr B is your
client and informs you that it was in fact Mr C who caused the accident since Mr C
turned in front of Mr B without using his indicators, with the result that Mr B had to
swerve to avoid a serious accident. The process of swerving resulted in the accident
with the vehicle of Mr A that was parked next to the road at that time. Advise Mr B
with regard to claiming his damages.

8.4 A is traveling at 120 km/h in a 60 km zone while B is exiting his driveway without
maintaining a proper look-out. A swerves to avoid a collision with B and collides with
C’s Ferrari that was parked on the pavement. C institutes action against A, claiming
R120 000 in damages. A is of the opinion that B was also negligent. Advise A with
regard to the possible applicability and consequences of section 2(2)(b) of the
Apportionment of Damages Act and with regard to rule 13 of the High Court Rules in
this instance.

8.5 Mr A suffers damages in the amount of R300 000 during a major car accident. Mr
A was driving his Porsche when Mr B pushed him off the road for no apparent
reason. Mr A is however insured and his insurance company “BeSure” fully
indemnifies him. BeSure however believes that Mr B should reimburse them.

(a) Indicate the parties by citing the said parties in a civil suit to recover the damages
allegedly caused by Mr B.

(b) Indicate the difference (if any) in your answer in (a) if Mr A ceded his (possible)
action against Mr B to BeSure.

8.6 A and B purchase an oil painting from the owners, C and D.

(a) Indicate the parties by citing the said parties to the suit where A and B fails to pay
the purchase price after the painting has been delivered by C and D.

(b) Indicate the parties by citing the said parties to the suit where C and D refuse to
deliver the painting to A and B.

8.7 A and B are partners in the AB Partnership. On behalf of the partnership A and B
obtain a loan from the B Bank to the amount of R50 000. The partnership fails to
repay the loan and the B Bank wants to institute action.

(a) Indicate the parties by citing the said parties to the suit for the recovery of the
loan (accept that the partnership still exists.)

(b) Indicate the parties by citing the parties to the suit for the recovery of the loan
(accept that the partnership has dissolved by means of agreement between A and
B.)

TEST: 30 Marks

- Definite question on founding of the jurisdiction of a foreign peregrenes

- He will not ask something that he has never done in class
- Jurisdiction = NB NB
- Know CC cases Strand (arrest to confirm jurisdiction over a forigen peregrinus=
UNCONSTITUTIONAL – if there is property – the property must be attached. If
there is no property summons must be served while the P is still in the republic )
and Malachai – the arrest (latin term) unconstitutional explain what that latin
term means

- Chapter 2 regarding special courts - know the courts for max 3 marks
o How was the court created
o What is the function of the court
o Small claims court –NB NB
o Know divorce jurisdiction of regional court (also nullity of marriages)
o Mag court jurisdiction
 Which matter is excluded
 Which territorial jurisdiction
 NB extension of mag court jurisdiction – NB section
numbers
 Can be applied in small claims court as well
o Question on the parties – know how to cite a plaintiff or defendant
o Class actions and public interest
o Only drafting of parties names
02 May 2018 – pg 141 read through introduction

Applications

ACTION V APPLICATION: action proceedings are longer – application there are

affidavits and after this, there is exchange of affidavits, the matter will proceed to a
motion court

Listen to recording about replying affidavits..

APPLICATIONS: CH 8 (PART 1)

- INTRODUCTION Ch 8.1
o Applications a.k.a motion proceedings (replaced petitions).
o Application: legal relief requested in writing.
o Not the procedure to follow when you envisage a factual dispute:
damages claimed.
o Room Hire case: factual dispute.
o Legislation: sequestrations and liquidations.
o Applicant – Respondent.

- TYPES OF APPLICATIONS: Ch 8.2

o ex parte applications; one party
o applications with notice to the other party (bilateral applications);
 applicant vs respondent
o interlocutory or interim applications.
 This is where you have an action and you request the plaintiff to
discover documents and if the plaintiff does not do this, the D
can ask the court to force A to discover these documents

- What should be included in the notice of motion

o the names and addresses of the applicant and respondent (if
applicable);
o the fact that the applicant has locus standi;
o the fact that the court has jurisdiction;
 o the material facts upon which the claim is based (facta probanda) as
well as the evidence which the deponent wishes to place before the
court (facta probantia);
o a request to the court to grant the relief as prayed for in the notice of
motion

- Room Hire case (page 144 -145)

o Claims for unliquidated damages – car accident - therefore there will
always be an action
o Divorce matters – always action
o Foreseeability of a material factual dispute – then institute an action
 If not – application

- When do you institute an action vs application

- Page 145 NB NB NB
o where the respondent denies all the material allegations made the
applicant and furnishes positive evidence to the contrary;
o where the respondent admits the allegations in the applicant’s
founding, but raises other facts which in turn are denied by the
applicant;
o where the respondent concedes that he has no knowledge of the main
facts alleged by the applicant, but denies same and orders applicant to
the proof thereof and furnishes evidence to indicate that the applicant
is prejudiced or not credible;
o where the respondent states that he can lend no evidence himself to
dispute the truth of the applicant’s statements but puts applicant to the
proof thereof by oral evidence subject to cross-examination.
- Page 146-148
- If there is an question of fact:
o The court can dismiss the application with costs
o Limited scope – presentation of oral evidence
o The court can refer the matter to trial – the application is converted into
an action
- Ex parte applications
o Here there is only one party before the court
o Application to be admitted as an attorney of the court (you are the only
one that has got an interest in the matter)
-
o Where the application is only a preliminary step in the application
o Ex parte application with ghosting
 o when the applicant is the only person with an interest in the case -
voluntary surrender of an insolvent estate or for admission as an
attorney or advocate;
o when the application is merely a preliminary step in the matter, for
example, where application is made to sue by means of substituted
service;
o where urgent or immediate relief is required and notice to the
respondent and the delay which such notice may occasion will result in
prejudice to the applicant.

- Bilateral applications
o substantive application
o The time periods stipulated in the rules of court must be calculated
exclusive of the first day (the date on which the notice of motion is
served upon the respondent) and inclusive of the last day
o Opposing a bilateral application
 give the applicant written notice, within the time period stated in
the notice of motion of the intention to oppose the application,
indicating an address within 15 kilometres of the office of the
registrar at which all notices and service of all documents
relating to the proceedings will be accepted;
o deliver an answering / opposing affidavit within 15 days of notifying the
applicant of the intention to oppose the application together with any
relevant documents;
o deliver notice of the intention to raise a point of law
o The applicant may deliver a replying affidavit within 10 days

- Page 155 -156 Urgent application

- Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers) Following factors must be borne in mind:
o When the matter is too urgent for the respondent to be allowed the
usual 10 court days prescribed by HCR 6(5)(b) from date of service of
notice of the application to date of hearing, the 10-day period may be
ignored, but the application must still be set down for hearing on a
motion day, and the papers must still be filed with the registrar of the
court sufficiently early for it to come on to the following week’s motion
roll.
o Only if the matter is so urgent that the applicant cannot set the matter
down for hearing on the court’s weekly motion day and give the
registrar the prescribed period of notice of the hearing may the
applicant set the matter down for hearing on the next motion day while
giving the registrar a shorter period of notice.
 o Only if the urgency is such that the applicant dare not wait even for the
next motion day may the matter be set down for hearing on the next
court day at the normal time of 10:00 am, or for the same day if the
court has not yet adjourned.
o Once the court has adjourned for the day, only if the applicant cannot
possibly wait for the hearing until the next court day at the normal time
when the court sits may the matter be set down forthwith for hearing at
any reasonably convenient time, in
- Applications in the mag’s court
o A Magistrate’s Court (District or Regional Division) has jurisdiction to
hear only such applications which the Magistrates’ Courts Act
empowers it to hear.
- Page 136 – roman 1 and 2
- Urgent applications
o Rule 55(5)